In re Cloherty

• Decision Date: 20 February 1891
• Citation: 27 P. 1064,2 Wash. 137
• Parties: IN RE CLOHERTY.
• Court: Washington Supreme Court

27 P. 1064

2 Wash. 137

IN RE CLOHERTY.

Supreme Court of Washington

February 20, 1891

Original proceedings in habeas corpus on petition of Joseph Cloherty. Prisoner dismissed.

Marshall K. Snell, for petitioner.

W H. Snell, Pros. Atty., and M. B. Hoxie, for respondent.

STILES J.

The petitioner, Joseph Cloherty, alias Charles Malone shows that he is detained by James H. Price, sheriff of the county of Pierce, under conviction of the crime of assault and battery, committed in the city of Tacoma. This conviction was had in the police court of that city, and he was sentenced to a term of six months in the county jail of Pierce county. He prayed a writ of habeas corpus from this court, directed to the sheriff, and that upon the return thereof he be discharged from custody. An order to show cause was issued, and, after argument, in which the petitioner, by his counsel, on one side, and the sheriff, by the prosecuting attorney of Pierce county and the city attorney of the city of Tacoma, on the other side, were heard, the question of his discharge is for decision.

Petitioner's ground for his application is that the police court of the city of Tacoma had no legal existence, and therefore no jurisdiction to arraign, try, or convict him. The city of Tacoma is a city of the first class, as defined by the act of March 24, 1890, and in the month of October, 1890, before the trial and conviction of petitioner, in pursuance of section 10, art. 11, of the constitution, and of the above-mentioned act, its people framed and adopted a municipal charter. Of this charter this court and all other courts in the state are required to take judicial notice. It therefore appears that, among the other provisions contained in the charter, was one establishing a "police court," and the language of this provision was identical with the language of sections 92-96 of the act providing for the organization, classification, incorporation, and government of municipal corporations, approved March 27, 1890; the sections above mentioned relating to the establishment, jurisdiction, and procedure of a police court in cities of the second class. We refer to the fact that the language found in the charter and that in the act are identical as a convenient method of making known what the constitution of the police court was without copying the instrument. It thus appears that, in so far as it was possible for it to do so, the city of Tacoma, endeavored to erect a court having full jurisdiction of the offense charged against the petitioner. The petitioner, however, maintains that under the constitution of the state nothing less than the express enactment of the legislature could create or establish such a court, and that, therefore, the provisions of the charter of Tacoma were mere idle declarations, without force, and wholly void. The state of Washington is a sovereign, whose written constitution is her visible charter. By the constitution all the judicial power (which is a distinct branch of the sovereignty) is vested in the courts therein created, independently of all legislation. The jurisdiction of these courts is universal, covering the whole domain of judicial power, even to that growing out of the supposed existence of municipal ordinances. But to the legislature of the state the constitution delegates authority to transfer from one of the constitutional courts to another certain limited portions of the judicial power; and it may also provide new, inferior co urts, not specifically mentioned in the constitution, to which may be assigned such part of the inferior judicial power as it may deem wise to transfer. The natural conclusion from this premise would be that a court for the administration of municipal ordinances must have been created by an act of the legislature. But the respondent urges that the power to erect a court of this kind is necessarily implied from the constitutional authority given to cities of 20,000 inhabitants to frame a charter for their own government; that this concession is equally as strong as the provisions with reference to courts; and that no harmonious construction of the instrument can be made unless the power thus contended for is allowed to exist. An argument in many respects plausible may be built upon this foundation; but it must be remembered that, although the power to frame a charter is conferred by the constitution, no greater intendments are inferred from that fact than if it were conferred by a mere act of the legislature, since, by the same sections, these favored cities are to be at all times subject to the general laws of the state. They are not in any sense erected into independent governments; their existence as municipal governments depends upon the legislative will; their areas can be extended only in the manner prescribed by statute; the elective franchise is exercised under the general laws applicable to the whole state; the power of eminent domain is not extended to them except by statutory delegation; and their municipal legislation is restricted to those subjects which rightfully belong to them in their corporate capacity. A charter framed under the constitutional provision is of no more or larger force than a legislative charter, and can lawfully treat only of matters relating to the internal management and control of municipal affairs, subject to constitutional and legislative regulations. It provides officers, ways and means, police, and other minutiæ of local administration which are necessary to the public convenience, peace, and good order; but for the enforcement of criminal ordinances the constitution and the legislature have provided independent courts of competent jurisdiction in the persons of justices of the peace. Cases are cited for our consideration, which we shall allude to at this time.

While Washington was yet a territory, although it was not held by any of the territorial courts, the legislature never attempted to create municipal courts, it being taken for granted that the organic act forbade the exercise of that power by prescribing that the judicial power of the territory should be vested in certain courts therein named. But in State v. Young, 3 Kan. 445, it was held that under the same organic act the legislature could provide courts in cities. And so, in Shafer v. Mumma, 17 Md. 331 under the constitution of 1851, it was held that the punishment of offenses against municipal ordinances was not a judicial function at all, but merely an exercise of a branch of the police power. The Kansas decision was based upon the fact that the legislature had committed to it all rightful subjects of legislation, which included the power to create municipal corporations, with their usual incidents, and upon the view that the organic act, in its provisions with regard to courts, had reference only to the enforcement of the laws of the territory at large. The Maryland decision goes as far as the respondent's contention; but, upon examining the constitution of that state, we find no reference whatever to the subject of municipal corporations, except a single line, which provides that they may be created by special acts. Thus the whole matter is as completely left to the legislature as any other subject over which it has unlimited jurisdiction. We think, however, that, even conceding that case to have been well decided, it is the only one that can be found going that far, and that it is not applicable under our constitution, which clearly includes the administration of city ordinances among the judicial powers of the state. Nor would the offense charged against the petitioner have been within the decision of the Maryland case, since it is one against a public law of the state, (Code, § 808,) punishable only by indictment or information. We were referred also to Hutchings v. Scott, 9 N. J. Law, 218, a case determined in 1827, where the decision was that the legislature of New Jersey had the power, under the constitution of 1776, to declare the mayor, recorder, and aldermen of cities justices of the peace for the trial of certain causes. But here again the constitution contained no reference to municipal corporations, and no definition or limitation of the judicial power, excepting that section 12 prescribed the terms of judges of the supreme and common pleas courts and justices of the peace. We may not disagree with the cases in Kansas or New Jersey, and yet hold that the mere grant of a charter of incorporation, with power to pass ordinances and prescribe penalties for their infraction, does not confer the...